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Monday, January 28, 2013

Can Bangladeshi Existing Civil Justice System Ensure Access to Justice?

Our
legal system theoretically ensure access to justice for each and every citizen
of the county but in practice the door of justice is not open for disadvantaged
segment of the society. Though national and international law impose obligation
to the state to establish a legal system accessible to each and every member of
society but in reality fulfillment of this obligation is yet to be a far
reaching goal[1].

In
our adversarial legal system, poverty, inordinate delay high cost of
litigation, lack of legal aid mechanism and unavailability of alternative of
formal Justice delivery system are considered the roadblocks in the way of
access to justice.

Problem
in our Civil Justice System

Our judicial and legal system has been historically
nourished in the rich tradition of common law, and it can boast a long record
of good delivery of justice. Like any other legal system, common law with its
adversarial or accusatorial features, has its merits and demerits. But in
recent years certain objective and subjective factors have so combined as to
lead our judiciary to a situation where its demerits are overpowering the
merits. Manifesting is crippling backlogs and delays. Delayed justice reduces even
the winner of the litigation, for its costs in terms of time, money, every and
human emotions are too high[2].

The
reasons for delays in the functioning of our civil justice system are both
systemic and subjective. They may be identified as follows:

Common law oriented adversarial or
accusatorial character of the civil processasagainst inquisitorialaspracticedincontinentalEurope, meaning
that the litigation is a party controlled which provides wide maneuvering
power to the lawyers and presupposes lesser initiative and relative
passivity of the judges.

Slow process of service of summons,
which can be further slowed down by the intentions of the parties
concerned indicating poor state of court administration.

Too much reliance on the resort to
interim injunctive relief and orders, leaning the hearing of the 'main
contentions and issue to 'infinity'.

Frequent adjournments of the trial
caused by the insistence of the lawyers, and reluctance of the judges to
limit these adjournments, such reluctance being explained partly by heave
case-load and partly be their unpreparedness to continue and complete the
process.

Vested interest of the lawyers for
lengthening and delaying the process, for they are often paid by their
appearances in the court.

Commonly made interlocutory orders
and appeals which fracture the case into many parts and effectively stay
the trail.

Scope for frequent amendments of
the plaints and written statements at any stage of trial.

Reluctance of the judges,
accentuated by their statutory non-compulsion, to use pre-existing rules
and orders to expediter the trial, or to sanction the parties for failing
to follow the procedural requirements, meaning that the judges do not take
initiative to employ procedural power of their rule making power to
achieve procedural effectiveness.

Absence of lawyer-client
accountability giving the lawyer monopoly power to conduct the case the
way he considers best suited to his own interest.

The above article have open the pictures or demerits of Laws and Legal system of Bangladesh..

In practice in the name of people interest many laws and regulations have been in acted in different times by the concern law Ministry where head or chief of the Ministry is lawyer or person with higher Degree in Laws .

Among many of the laws ONE LAW commonly known as " ARTHA RIN ADALAT AIN ".

THIS LAW HAVE BEEN ENACTED TO REALISE THE DEFAULTED BANK LOAN FROM THE BORROWER .

Apperently this law is very effective instrument to realise the loan amount ,

During execution or procceding of the suit in ARTHA RIN ADALAT to realize the loan amount with interest, only Bankers or Loan giving Agencies claims or submission are allowed

But the Total right of borrower to defend himself / herself or to submit the evidence of wrongs or faults or intentional negligence or malefide activities of bank personal or Loan giving agencies have been closed in all respects or can not consider by the concerned JUDGE of ARTHA RIN ADALAT .

And even The Loan borrower can not claim any compensation nor the compensations suita are allowed to file or hear or run simeltaneiusly in the same ARTHA RIN ADALAT.

This type of oppression are now in going in the name of justice.

Even the Borrowe can not go to higher court to seek justice without paying major part of the amount claimed by Bankers or Loan giving Agencies.

These are legal system prevailing our society depriving the Individual citizen of BANGLADESH